K.B. Rajeev Nair vs Rupesh and Co.

Thomas P. Joseph, J.—Petitioner is the judgment debtor in E.P. No. 140 of 2003 in O.S. No. 278 of 2000 of the court of learned Additional Munsiff, Kollam. Respondent has obtained a decree for money. As per execution petition amount due is more than Rs. 90,000/- with interest and costs. Petitioner has a contention that a sum of Rs. 32,000/- has already been paid to the respondent on 22.12.2009 and there was an understanding to settle the criminal case in respect of the cheques in question based on which decree has been obtained but respondent backed out. Executing court found that petitioner has sufficient means and ordered warrant of arrest against petitioner. That order is under challenge. It is contended that finding entered by the learned Munsiff is not correct.

So far as finding regarding means is concerned executing court found that petitioner is running a Cashew Factory and has sufficient means. That finding needs no interference. In the light of that finding there is little reason to interfere with the order issuing warrant of arrest.

Learned Counsel requests that petitioner may be given five months'' time to discharge the amount due under the decree. Learned Counsel also states that petitioner is trying to settle the matter with the respondent. He sought for installment facility for discharging the decree debt.

Question whether the decree amount is to be paid in installments is a matter which the executing court has to decide after hearing counsel for respondent also. Having regard to the facts and circumstances stated I am inclined to give petitioner some time to discharge the liability due under the decree. Resultantly, Writ Petition is dismissed. But petitioner is granted three months'' time from this day to pay the amount due under the decree subject to the following conditions:

(i) Petitioner shall deposit in the executing Rs. 35,000/- (Rupees Thirty five thousand only) for payment to the respondent within one month from this day.

(ii) Petitioner shall pay the balance amount due under the decree within three months from this day (unless in the meantime executing granted installment facility to petitioner to pay the balance amount after hearing counsel for respondent also).

(iii) If the deposit aforesaid is not done within the time provided or the entire balance amount is not deposited within the said period of three months (unless the executing court permits installment payment) it will be open to the respondent to proceed with execution pursuant to Ext.P3, order without any further enquiry as to the means of petitioner.

(iv) It is directed that warrant of arrest shall remain in abeyance during the period of three months from this day or until default in deposit of the amount is committed by the petitioner whichever is earlier.